Wiechert v. State , 170 So. 3d 109 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TIMOTHY WAYNE WIECHERT, )
)
Appellant, )
)
v. ) Case No. 2D14-1937
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed July 1, 2015.
Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.
Howard L. Dimmig, II, Public Defender, and
Allyn M. Giambalvo, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jason M. Miller, Assistant
Attorney General, Tampa, for Appellee.
VILLANTI, Chief Judge.
Timothy Wayne Wiechert appeals his convictions for one count of burglary
of an unoccupied dwelling and one count of third-degree grand theft. We affirm
Wiechert's burglary conviction without comment. However, because the State failed to
introduce sufficient evidence to prove the value of the stolen items beyond a reasonable
doubt, as statutorily required, we must reverse Wiechert's conviction for third-degree
grand theft and remand for entry of a conviction for petit theft and resentencing.
The State chose to charge Wiechert with grand theft under section
812.014(2)(c)(1), Florida Statutes (2013), which requires the State to prove through
competent, substantial evidence that the value of the property stolen was "$300 or
more, but less than $5,000."1 At trial, the victim testified that a safe was stolen from his
residence, for which he had paid "around a hundred dollars or so, a hundred-fifty at
Home Depot." He believed that he had purchased the safe about two years before the
theft. Inside the safe were "birth certificates, Social Security cards, titles to vehicles –
you know, important paperwork, stuff like that." He said that if he had to replace the
items, it would be "whatever the Tax Collector's Office would charge you which is about
a hundred, hundred-and-a-half or so." He testified that he had replaced one of the titles
and that he recalled having to pay "a hundred dollars or so," but he also testified that
"[a]t the time I was transferring the title over to my son, so I don't know exactly how
much" was for the transfer rather than the replacement of the title.
In addition to the safe and its contents, the victim testified that the thief
took one pair of "work" Levi's jeans, two jackets, one t-shirt, and a grey duffle bag from
his house. The victim had paid $200 each for the jackets, one of which was purchased
in 2008 and the other in 2007. He paid about $20 for the t-shirt the same year it was
stolen. He did not recall when he purchased the jeans or for how much, and he
1
We note that the State could have chosen to charge Wiechert with third-
degree grand theft under section 812.014(2)(d), Florida Statutes (2013), which makes it
a third-degree felony to steal property valued at $100 or more, but less than $300, from
a dwelling. However, the State did not charge Wiechert under this statute; therefore, it
was obligated to prove that the value of the items stolen was $300 or more.
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believed that the duffle bag had been a promotional gift from one of his suppliers. The
State did not elicit any testimony concerning the condition of any of the clothing or its
replacement cost or current value.
At the close of the State's case, Wiechert moved for a judgment of
acquittal, arguing that the State had failed to present sufficient evidence of value to
support a conviction for grand theft. The trial court denied this motion, and Wiechert
was convicted as charged. He now appeals, arguing that the trial court erred by
denying his motion for judgment of acquittal on the grand theft charge because the
State's proof of value was legally insufficient.
The degree of a theft conviction generally depends on proof of the value of
the items stolen, and hence the value of the stolen goods constitutes an element of the
crime that the State must prove beyond a reasonable doubt. See, e.g., Negron v. State,
306 So. 2d 104, 108 (Fla. 1974), receded from on other grounds by F.B. v. State, 852
So. 2d 226 (Fla. 2003); Carter v. State, 77 So. 3d 849, 851 (Fla. 2d DCA 2012). "Value
means the market value of the property at the time and place of the offense or, if such
cannot be satisfactorily ascertained, the cost of replacement of the property within a
reasonable time after the offense." § 812.012(10)(a)(1). When direct testimony
concerning fair market value is not available, the State may establish value through
evidence of "(1) original market cost; (2) the manner in which the item was used; (3) the
general condition and quality of the item; and (4) the percentage of depreciation." State
v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991). Hence, "[f]air market value takes into
consideration not only the purchase price, but the manner in which the item was used,
its condition and depreciation." Korica v. State, 791 So. 2d 543, 544 (Fla. 2d DCA
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2001). Even considering these options for proving value, "[i]f the value of property
cannot be ascertained, the trier of fact may find the value to be not less than a certain
amount; if no such minimum value can be ascertained, the value is an amount less than
$100." § 812.012(10)(b). Theft of property valued at less than $100 constitutes petit
theft, which is a second-degree misdemeanor. See § 812.014(3)(a).
To obtain Wiechert's conviction under section 812.014(2)(c)(1), the State
was required to prove beyond a reasonable doubt that the value of the property he stole
was at least $300. However, the State's evidence was legally insufficient to establish
this value. The victim offered no evidence as to the market value of the safe or the
clothing at the time of the offense. Instead, he testified only to purchase prices that
were from two to seven years ago. The State also did not offer any evidence of the
replacement cost of the safe or the clothing, nor did it offer any evidence of the manner
in which the items were used, their general condition or quality, or any applicable
depreciation. Arguably, the State presented some evidence of the replacement cost of
the vehicle titles; however, that evidence was limited to the victim's "guesstimate" that
some portion of approximately $100 he paid to transfer the vehicle title to his son was
for the replacement of the title. This evidence, standing alone, was insufficient to
constitute proof beyond a reasonable doubt that the cumulative value of the stolen items
exceeded $100, much less that it exceeded the $300 necessary to obtain a conviction
under section 812.014(2)(c)(1). Therefore, the trial court should have granted
Wiechert's motion for judgment of acquittal on the charge of third-degree grand theft,
and its refusal to do so was error.
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Accordingly, we reverse Wiechert's grand theft conviction and remand with
directions that the trial court reduce that conviction to one for second-degree petit theft.
See § 924.34, Fla. Stat. (2013) (providing that when the evidence does not prove the
offense for which the defendant was found guilty but does establish guilt of a lesser
offense, "the appellate court shall reverse the judgment and direct the trial court to enter
judgment for the lesser . . . offense"); see also Carter, 77 So. 3d at 852 (reducing
defendant's conviction from grand theft to petit theft when the State failed to prove the
value of the items stolen); Jones v. State, 958 So. 2d 585, 586 (Fla. 2d DCA 2007)
(same). In addition, because this change in convictions will affect Wiechert's Criminal
Punishment Code scoresheet, on remand the trial court must resentence Wiechert
using a corrected scoresheet.
Affirmed in part, reversed in part, and remanded for further proceedings.
ALTENBERND and KELLY, JJ., Concur.
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